Sea Mar Community Health Centers - Decision Summary

Sea Mar Community Health Centers (19-CA-28595; 345 NLRB No. 69) Seattle, WA Sept. 28, 2005. The Board affirmed the administrative law judge’s finding that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with Office Employees Local 8 over wages for the dental lab technician position. Chairman Battista and Member Schaumber reversed the judge’s finding that the Respondent violated Section 8(a)(5) and (1) by failing to give the Union notice and an opportunity to bargain over the decision to close the dental lab and return Jose Cornejo to sterilizing dental equipment. Member Liebman disagreed with her colleagues on this issue.

In reversing the judge, the majority found that the Respondent was not obligated to bargain over the decision to close the lab or over the effects of that decision. They wrote: “The lab and the lab technician position were created by a person who had no authority to do so, and the lab operated without Respondent’s knowledge and in direct contradiction to its express order. The Respondent’s order to end this rogue operation—once it was discovered—is a core entrepreneurial decision that is not subject to the duty to bargain.”

Dissenting in part, Member Liebman would find that the Respondent violated Section 8(a)(5) and (1) by unilaterally closing the lab and subcontracting the lab work. She said that subcontracting is a mandatory subject of bargaining if it involves the substitution of one group of workers for another to perform the same work and does not constitute a change in the scope, nature, and direction of the enterprise. See Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203 (1964); Torrington Industries, 307 NLRB 809 (1992)

Member Liebman joined the majority in finding that the Respondent violated the Act by refusing to bargain over wages for the dental lab technician position but would not limit the remedy to the 6-day period between the Union’s request and the closure of the dental lab. Instead, she would adopt the judge’s recommendation requiring that the Respondent, among others, reinstate the dental lab as it existed prior to the unilateral subcontracting of dental lab work, reinstate Cornejo to his former position as dental lab technician, and bargain with the Union over the wages to be paid to employees working in the dental lab technician position.

Charge filed by Office Employees Local 8; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Seattle, Sept. 24-25, 2003. Adm. Law Judge John J. McCarrick issued his decision Dec. 24, 2003.